Divorce and Seperation

Question 1

How is Jurisdiction Established for Divorce Actions?

Answer 1

To establish jurisdiction over a divorce action, one of the parties must be domiciled in the jurisdiction where the action is brought.

• In Rem Action: Divorce is viewed as an in rem action; thus, certain types of constructive service (such as publication) may be permitted.
• Financial Issues: To determine financial issues (like property rights and support), the court must have personal jurisdiction over the defendant

Question 2

What are the Grounds for No-Fault Divorce?

Answer 2

Most states allow spouses to get a divorce without regard to marital fault. Generally, this requires showing ONE of the following:

1. Both spouses agree that the marriage is irretrievably broken (irreconcilable differences)
2. The spouses have been living apart for a specified and continuous period of time.
3. Both spouses agree they are now incompatible and can no longer be married.

Question 3

What are the Grounds for Fault-Based Divorce?

Answer 3

1. Adultery
2. Willful Desertion (or abandonment): This requires an unjustified departure from the marital home for a specified period with no intent to return
3. Extreme physical or mental cruelty
4. Voluntary drug addiction or habitual drunkenness commencing after the marriage
5. Insanity

Question 4

What are the Defenses for No-Fault Divorce?

Answer 4

The ONLY DEFENSE to a no-fault divorce is to DENY the existence of one of the above grounds. One spouse may claim that a reconciliation restarted the clock for living separate and apart.

Question 5

What are the Defenses for Fault-Based Divorce?

Answer 5

Defenses to fault-based divorce are rarely used, but still exist:

1. Collusion: Collusion is an agreement between the spouses to simulate grounds for divorce or to forgo raising a valid defense. In some jurisdictions, collusion will prevent the granting of a divorce.
2. Connivance: Connivance is willing consent to the other spouse’s misconduct. This is usually limited to adultery cases, and it has been abolished in many states
3. Condonation: Condonation is the forgiveness of marital offenses with full knowledge of the wrongs. Resumption of marital relations after the forgiveness is the key element of this defense.
4. Recrimination: Recrimination is a defense that arises when the party seeking the divorce is also guilty of misconduct for which a divorce may be granted. This defense is rarely used.

Question 6

How is Legal Seperation DIFFERENT from Divorce?

Answer 6

An order of legal separation (sometimes called a “divorce from bed and board”) DOES NOT TERMINATE the marriage, but the parties can have all of their rights regarding property, spousal support, custody, and child support adjudicated in this proceeding.

• If the court permanently divides marital property, then any after acquired property is separate property.
• A legal separation can usually be enlarged into an absolute divorce if the parties so request.